Neutral Citation Number: [2014] UKUT 51 (AAC)

 

Appeal No.  T/2013/73

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of John Baker DEPUTY TRAFFIC COMMISSIONER for London and the South East of England

Dated 13 August 2012

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

GHULAM QADIR KHAN

 

 

 

Attendances:

For the Appellant: The Appellant was represented by Jim Marsh of AITAC Consultancy

 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 17 January 2014

Date of decision: 30 January 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED.

 

 

 

 

SUBJECT MATTER:-  Operating Centre; Miscellaneous, material change in circumstances

 

 

CASES REFERRED TO:- None

 

REASONS FOR DECISION

 

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for London and the South East of England to revoke the Appellant’s goods vehicle operator’s licence on the grounds (i) that an unspecified place had been used as an operating centre, (ii) that the Appellant had contravened a condition of the licence and (iii) that there had been a material change in circumstances in that the Appellant might no longer be of appropriate financial standing.

2.        The factual background to this appeal appears from the documents and the  Deputy Traffic Commissioner’s decision and is as follows:-

(i)               The Appellant is the holder of a standard national goods vehicle operator’s licence authorising 2 vehicles.  The licence was granted in December 2009, with an operating centre at Unit 2A, Fresh Wharf Estate, Highbridge Road, Ilford, IG11 7BG, (“Unit 2A”).  The correspondence address given was 22 Aberdour Road, Ilford, IG3 9SB, (“Aberdour Road”).

(ii)              On 9 August 2010 a Senior Vehicle Examiner wrote to the Appellant at Aberdour Road about the difficulty experienced by a Vehicle Examiner who had been unable to arrange for a fleet inspection.  The Appellant was requested to telephone, within 7 days, to arrange an appointment for a fleet inspection.  He was warned that failure to do so would result in the file being passed to the Traffic Commissioner.

(iii)             On 16 September 2010 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant referring to his failure to respond to the letter from VOSA and setting out the action being considered by the Traffic Commissioner.  The letter went on to give the Appellant an opportunity to make representations, by 7 October 2010, and made clear that revocation of the licence was being considered.

(iv)            On 28 October 2010 the Central Licencing Unit, (“CLU”) received an application for Major Changes to the licence.  The Appellant was shown as the holder of the licence t/a East West Skips, with a correspondence address of 2 Creek Road, Barking, (“Creek Road”).  Two questions relating to Limited Companies were then completed which suggested that the Unit 2A address should be removed and Creek Road substituted.

(v)             In a letter received by the CLU on 25 November 2010, Lisa Shortall, apparently acting on behalf of the operator, wrote to say that she had been misinformed when completing the Major Changes form and that the operator was still the Appellant t/a East West Skips.  She went on to say that the only thing which had changed was the operating centre which had ceased to be at Unit 2A and was now to be Creek Road.

(vi)            On 17 January 2011 the CLU wrote to the Appellant at Aberdour Road.  The letter indicated that since the operator was not changing to a Limited Company it was possible to consider the variation of the licence.  The letter requested details of the new operating centre and pointed out that a Public Notice must be placed in a local newspaper.

(vii)           On 26 March 2012 the CLU wrote to the Appellant at Creek Road saying that there had been no response to the letter of 17 January.  A further application form for a change of operating centre was enclosed.

(viii)          On 25 April 2012 the CLU wrote to the appellant at Creek Road pointing out that there had been no response to the letter of 26 March 2012.  The Appellant was required to respond by 9 May 2012 and he was warned that regulatory action would be taken if he failed to do so.

(ix)            On 20 June 2012 the OTC wrote to the Appellant at Creek Road concerning the failure to respond to earlier letters.  The letter went on to warn the Appellant that the Traffic Commissioner was considering making a direction under s. 26(1)(a) (b) & (h) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"], (the three grounds on which the licence was later revoked).  The Appellant was given until 12 July 2012 to request a Public Inquiry and he was warned that if no request was made his licence would be revoked.

(x)             On 13 August 2012 the OTC wrote to the Appellant at Creek Road stating that, in the absence of any representations or a request for a Public Inquiry the Traffic Commissioner had revoked the licence, on the three grounds stated in paragraph 1 above, with effect from 13 August 2013.

(xi)            On 26 September 2013 the OTC wrote to the Appellant’s wife, at Aderdour Road.  The letter notified her that the Traffic Commissioner intended to hold a Public Inquiry at which to consider her application for a restricted goods vehicle operator’s licence.  The letter explained that in considering the matters set out in the letter the Traffic Commissioner would, in particular, focus on her links with her husband, whose licence had been revoked in 2012.

(xii)           On 3 October 2013 the Appellant wrote to the Traffic Commissioner.  He said:

“It has been three years that I sold my skip lorries and skips to a company called London Skip Hire on the 12.09.2010 to John Paris (sic) 2 Creek road, Barking Essex IG11 0JH.  I myself phoned your office to notify them that I had sold the lorries and skips and told them I wanted to keep my operator licence and will renew 29.12.14.  I also told your staff that I have left my disc in one of the vehicles, I was told not to worry”.

The Appellant went on to explain that he had just found out that his licence had been revoked, as a result of his wife’s application for an operator’s licence.  He said that he had phoned the OTC and had told them that he was not aware of any change of address and that he had not received any letters about change of address.  He said that when he was running the business the correspondence address was Aberdour Road and the operating centre was at 21a Fresh Wharf Estate.  He ended by expressing concern as to why he was not informed of the change of address.

(xiii)          On 17 October 2013 Jim Marsh, then of Ward International Consulting Ltd, wrote to the OTC concerning Mrs Khan’s application and the revocation of the Appellant’s licence.  He said that because of ill health the Appellant decided, in September 2010, to sell his 2 vehicles and his 65 skips to Mr John Parish, who operated from 2 Creek Road.  He added that he understood that the sale was completed on 12 September 2010.  He confirmed that the Appellant’s intention was to retain his operator’s licence, in case he was in a position to operate vehicles in the future.  He explained that at no time had the Appellant given permission for the vehicles he had sold to continue to be used under his licence, nor did he give anyone permission to enter into correspondence on his behalf, or to make changes to the licence.  He went on to set out the steps taken by the Appellant once he became aware of the revocation of the licence.  These have been summarised above.  Mr Marsh went on to acknowledge that the decision to revoke the licence could not be ‘reviewed’ by the Traffic Commissioner.  Instead he indicated that that meant making an appeal, out of time, to the Upper Tribunal.  He invited the Traffic Commissioner to provide copies of the decision letter and any other documents not sent to the Aberdour Road address.

(xiv)         On 21 October 2013 the OTC replied to Mr Marsh. The letter indicated that Mr Marsh’s explanation had been put before the Deputy Traffic Commissioner, who was due to hear the Public Inquiry into Mrs Khan’s application.  It went on to explain that he agreed that there was no provision for the Traffic Commissioner to review or vary the decision to revoke the licence.  It also set out two possible solutions to the problem, one being an appeal out of time the other being to place a note on the file to indicate that the revocation should not be held against the Appellant should he ever apply for a new licence.

(xv)          In the event the Appellant applied for and was granted permission to appeal out of time.  In his grounds of appeal he referred to procedural errors resulting in the Appellant’s correspondence address being changed without his knowledge and, as a result, no notice being given to him that the Traffic Commissioner was considering the revocation of the licence.

3.         The Appellant was present at the hearing of the appeal.  He was represented by Mr Marsh.  Mr Marsh explained that having considered the suggestion put forward by the Deputy Traffic Commissioner the Appellant had decided that it was important to remove the stigma of revocation, by appealing, rather than run the risk that a note on the file might, at some stage be lost or go astray.

4.         We take the view that that was a sensible and understandable approach.  The Deputy Traffic Commissioner and the OTC fairly and realistically recognise that it appears that the correspondence address was changed by someone, who lacked any authority to request such a change.  In addition having sold his vehicles and skips and ceased to operate the Appellant was not using an unauthorised operating centre, nor was he in breach of any condition of the licence nor was there any question of a material change of circumstances in relation to financial standing.

5.         We can understand why the Deputy Traffic Commissioner revoked the licence, in the circumstances then known to him.  However, with the benefit of the material now available to us we are satisfied that that decision was plainly wrong.  The Appeal is allowed and the revocation of the Appellant’s licence is set aside.

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal. 30 January 2014